IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

CIVIL RIGHTS DEFENSE FIRM,

P.C., et al.,

Petitioners

v.

GOVERNOR TOM WOLF

Respondent

No. 63 MM 2020

IN RE: GOVERNOR TOM WOLF’S

ORDER OF MARCH 19, 2020

CLOSING ALL “NON-ESSENTIAL”

BUSINESSES

PETITION OF: COSTOPOULOS,

FOSTER & FIELDS, A LAW FIRM

No. 64 MM 2020

GOVERNOR WOLF’S ANSWER TO THE

APPLICATIONS FOR EXTRAORDINARY RELIEF

Office of Attorney General

15th Floor, Strawberry Square

Harrisburg, PA 17120

Phone: (717) 712-3818

FAX: (717) 772-4526

DATE: March 20, 2020

JOSH SHAPIRO

Attorney General

KELI NEARY

Executive Deputy Attorney General

Civil Law Division

BY: J. BART DELONE

Chief Deputy Attorney General

Chief, Appellate Litigation Section

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................................................................... ii

INTRODUCTION ..................................................................................................... 1

STATEMENT OF CASE .......................................................................................... 2

STANDARD .............................................................................................................. 4

ARGUMENT ............................................................................................................. 5

I. Petitioners Cannot Demonstrate a Clear Right to Relief on the Merits. ......... 5

A. The Governor is empowered by the Emergency Management

Services Code to close certain businesses during a disaster. ................ 5

B. The Governor’s Order does not violate Article 1, Section 1 of

the Pennsylvania Constitution or the Fifth and Fourteenth

Amendments to the U.S. Constitution. .................................................. 9

C. The Governor’s Order does not abridge the right to bear arms. .........10

D. The Governor’s Order does not regulate the practice of law. .............10

II. An Injunction is Against the Public Interest and Greater Harm will

Result if an Injunction is Issued. ...................................................................13

III. Petitioners Cannot Demonstrate that an Injunction will Prevent

Irreparable Harm. ...........................................................................................16

IV. Entry of a Preliminary Injunction will Disrupt the Status Quo and Will

Not Abate Offensive Conduct. ......................................................................19

CONCLUSION ........................................................................................................21

ii

TABLE OF AUTHORITIES

Page

Cases

Allegheny Cty. v. Com.,

544 A.2d 1305 (Pa. 1988) ...................................................................................... 4

Anchel v. Shea,

762 A.2d 346 (Pa. Super. Ct. 2000) ....................................................................... 4

Casey v. Pa. State Univ.,

345 A.2d 695 (Pa. 1975) ........................................................................................ 8

Com. v. Stern,

701 A.2d 568 (Pa. 1997) ......................................................................................12

Credit Alliance Corp. v. Phila. Minit–Man Car Wash Corp.,

301 A.2d 816 (Pa. 1973) ......................................................................................17

Danganan v. Guardian Protective Services,

179 A.3d 9 (Pa. 2018) ............................................................................................ 7

District of Columbia v. Heller,

554 U.S. 570 (2008) .............................................................................................10

ECRI v. McGraw-Hill, Inc.,

809 F.2d 223 (3d Cir. 1987) .................................................................................16

Greenmoor, Inc. v. Burchick Const. Co.,

908 A.2d 310 (Pa. Super. 2006) .........................................................................16

In re Appeal of Little Britain,

651 A.2d 606 (Pa. Cmwlth. 1994) .......................................................................18

In re: General Statewide Judicial Emergency, Admin. Dkts. 531 & 532 (Pa) .......13

Lancaster County v. PLRB,

94 A.3d 979 (Pa. 2014) .......................................................................................... 7

Loyd v. Fishinger,

605 A.2d 1193 (Pa 1992) .....................................................................................12

iii

New Castle Orthopedic Assocs. v. Burns,

392 A.2d 1383 (Pa. 1978) (plurality) ...................................................................17

Novak v. Commonwealth,

523 A.2d 318 (Pa. 1987) ......................................................................................17

Peco Energy Co. v. Pa. Pub. Utility Comm’n,

791 A.2d 1155 (Pa. 2002) ...................................................................................... 8

Pennsylvania Pub. Util. Comm'n v. Process Gas Consumers Grp.,

467 A.2d 805 (Pa. 1983) ......................................................................................13

Sameric Corp. of Mkt. St. v. Goss,

295 A.2d 277 (Pa. 1972) ......................................................................................18

Searfoss v. Sch. Dist. of Borough of White Haven,

156 A.2d 841 (Pa. 1959) ......................................................................................13

Shaulis v. Pennsylvania State Ethics Comm'n,

833 A.2d 123 (Pa. 2003) ......................................................................................12

Sheridan Broad. Networks, Inc. v. NBN Broad., Inc.,

693 A.2d 989 (Pa. Super. Ct. 1997) .....................................................................18

Summit Towne Ctr., Inc. v. Shoe Show of Rocky Mount, Inc.,

828 A.2d 995 (Pa. 2003) ............................................................................... 13, 17

Wajert v. State Ethics Comm'n,

420 A.2d 439 (Pa. 1980) ......................................................................................13

Yocum v. Commonwealth Pennsylvania Gaming Control Bd.,

161 A.3d 228 (Pa. 2017) ......................................................................................12

Statutes

35 Pa. C.S. § 7101 ...................................................................................................... 5

35 Pa.C.S. § 7102 ....................................................................................................... 5

35 Pa.C.S. § 7103 ...................................................................................................5, 8

35 Pa.C.S. § 7301 ............................................................................................ 5, 8, 10

iv

News Sources

2019–20 coronavirus pandemic, Wikipedia, https://en.wikipedia.org/wiki/

2019–20_coronavirus_pandemic (last visited 3/20/2020). .................................... 2

Center for Diseases Control Website, https://www.cdc.gov/coronavirus/2019-

ncov/prepare/prevention.html (last visited 3/20/2020). ......................................... 1

Chas Danner, “CDC’s Worst-Case Coronavirus Model: 214 Million Infected, 1.7

Million Dead,” New York Intelligencer,

https://nymag.com/intelligencer/2020/03/cdcs-worst-case-coronavirus-model-

210m-infected-1-7m-dead.html (last visited 3/20/2020). ...................................... 2

COVID-19 Business Resources, https://dced.pa.gov/resources/ (last visited

3/20/2020). ...........................................................................................................10

Derrick Bryson Taylor, “A Timeline of the Coronavirus,” The New York Times,

https://www.nytimes.com/article/coronavirus-timeline.html (last visited

3/20/2020). ............................................................................................................. 2

Gov. Wolf, Congresswoman Houlahan, Sec. of Health, Sec. of Education Outline

COVID-19 Mitigation Guidance for Pennsylvania Schools and Additional

Closures in Bucks and Chester Counties,

https://www.governor.pa.gov/newsroom/gov-wolf-congresswoman-houlahan-

sec-of-health-sec-of-education-outline-covid-19-mitigation-guidance-for-

pennsylvania-schools-and-additional-closures-in-bucks-and-chester-counties/

(3/14/20). ....................................................................................................... 14, 15

Gov. Wolf, Sec. of Health, PA Chamber Outline COVID-19 Mitigation Guidance

for Pennsylvania Schools, Businesses, and Additional Closures in Delaware

County, https://www.governor.pa.gov/newsroom/gov-wolf-sec-of-health-pa-

chamber-outline-covid-19-mitigation-guidance-for-pennsylvania-schools-

businesses-and-additional-closures-in-delaware-county/ (3/13/20). ...................14

Max Mitchel, “Pa. Office of Counsel OK's AOPC Guidance Saying Law Offices

May Stay Open on Restricted Basis,” The Legal Intelligencer,

https://www.law.com/thelegalintelligencer/2020/03/20/pa-office-of-counsel-

says-law-offices-may-stay-open-on-restricted-basis (last visited 3/20/2020). ....11

v

“Pa. reports 83 new coronavirus cases as state total rises to 268,” PennLive,

https://www.pennlive.com/news/2020/03/pa-reports-83-new-coronavirus-cases-

state-total-rises-to-268.html (last visited 3/20/20). ..............................................16

UJS Coronavirus Information, http://www.pacourts.us/ujs-coronavirus-information

(last visited 3/20/2020) ........................................................................................11

Wolf Administration Orders Restaurants and Bars to Close Dine-In Service in

Mitigation Counties Including Allegheny To Stop Spread of COVID-19,

https://www.governor.pa.gov/newsroom/wolf-administration-orders-restaurants-

and-bars-to-close-dine-in-service-in-mitigation-counties-to-stop-spread-of-

covid-19/ (3/15/20). .............................................................................................14

Wolf Administration Updates Businesses on Guidance for COVID-19 Mitigation

Efforts, https://www.governor.pa.gov/newsroom/wolf-administration-updates-

businesses-on-guidance-for-covid-19-mitigation-efforts/ (3/16/20). ..................15

1

INTRODUCTION

The world is suffering under a global pandemic that has touched nearly every

nation and has caused the states of New York, California and Illinois to order their

citizens to shelter in place. What began as two presumptive cases of the disease in

Pennsylvania on March 6, 2020, has spread to 268 positive cases across 18 counties

and one death in two weeks. The novel Coronavirus Disease 2019 (COVID-19)

spreads “mainly from person-to-person.”1 The Governor, through powers entrusted

to him, issued an order on March 19, 2020, in an attempt to arrest or slow the spread

of this pandemic within the Commonwealth and save lives.

Petitioners, a group of lawyers and firearm sellers, filed two emergency

petitions to enjoin the Governor’s Order, the gravamen of which is to complain that

the Governor’s Order forecloses the right to bear arms and practice law. Nothing in

the order, however, prohibits an attorney from practicing law or a citizen from

owning a firearm. It merely closes certain businesses to prevent contagion. As

demonstrated by this filing, attorneys continue to practice their profession from

home offices, as do millions of other professionals across the nation. COVID-19

presents an extraordinary challenge that requires extraordinary measures to combat.

The Governor was empowered by law to combat precisely this challenge.

1 Center for Diseases Control Website, https://www.cdc.gov/coronavirus/2019-

ncov/prepare/prevention.html (last visited 3/20/2020).

2

STATEMENT OF CASE

On the eve of a new year, researchers in China identified a new virus that had

infected dozens of people, now known as COVID-19, an acronym that stands for

coronavirus. On January 20, 2020, cases of COVID-19 were confirmed in Japan,

South Korea, and Thailand. The very next day, the first case was confirmed in the

United States. Ten days later, the World Health Organization declared a global

health emergency. Over the next month, COVID-19 swept the globe.2 As of today,

COVID-19 is a pandemic with over 270,000 cases having been reported in 184

countries, resulting in 11,200 deaths.3 One recent Center for Diseases Control (CDC)

projection estimated that that COVID-19 could infect between 160 million and 214

million Americans and kill anywhere from 200,000 to 1.7 million people.4 That

model also suggested that a U.S. epidemic could lead to the hospitalization of

anywhere from 2.4 million to 21 million people.5 Depending on the timing, that

2 Derrick Bryson Taylor, “A Timeline of the Coronavirus,” The New York

Times, https://www.nytimes.com/article/coronavirus-timeline.html (last visited

3/20/2020). 3 2019–20 coronavirus pandemic, Wikipedia, https://en.wikipedia.org/wiki/

2019–20_coronavirus_pandemic (last visited 3/20/2020). 4 Chas Danner, “CDC’s Worst-Case Coronavirus Model: 214 Million Infected,

1.7 Million Dead,” New York Intelligencer,

https://nymag.com/intelligencer/2020/03/cdcs-worst-case-coronavirus-model-

210m-infected-1-7m-dead.html (last visited 3/20/2020). 5 Id.

3

burden could devastate the U.S. health care system, as U.S. hospitals only have a

capacity of 925,000 beds and fewer than 100,000 beds for critically ill patients.6

In order to protect the lives and health of millions of Pennsylvanians,

Governor Wolf, on March 19, 2020, issued an executive order (Governor’s Order)

proclaiming the existence of a disaster emergency throughout the Commonwealth

pursuant to the statutory power granted to him under 35 Pa.C.S. § 7301(a). In

accordance with the general powers the Governor maintains as the executive and

specific powers granted him under, inter alia, 35 Pa.C.S. § 7301(b) and (f), ordered

that all non-life sustaining businesses cease operations. The Governor outlined in

detail those businesses considered life-sustaining and those that are not. This

prohibition specifically does not apply to virtual or telework operations so long as

social distancing and other mitigation measures are followed. Because violation of

the order risks the health and lives of Pennsylvanians, the order permits enforcement

actions against such violators.7

Today, two sets of petitioners—the Civil Right Defense Firm, P.C., Firearms

Policy Coalition, Inc., Prince Law Offices, P.C., Trop Gun Shop, LTD. And Roger

Mullins (collectively Firearm Petitions) and the Costopoulos Foster & Fields Law

firm (Costopoulos)—filed emergency petitions to enjoin the Governor’s Order.

6 Id. 7 Exhibit A of the Firearm Petitioners’ Application.

4

STANDARD

“A preliminary injunction is an extraordinary, interim remedy that should

not be issued unless the moving party’s right to relief is clear and the wrong to be

remedied is manifest.” Anchel v. Shea, 762 A.2d 346, 351 (Pa. Super. Ct. 2000).

There are six “essential prerequisites” that a party must establish to obtain

preliminary injunctive relief:

(1) that the injunction is necessary to prevent immediate and irreparable harm;

(2) that greater injury would result from refusing an injunction than from granting

it, and, concomitantly, that issuance of an injunction will not substantially

harm other interested parties in the proceedings;

(3) that a preliminary injunction will properly restore the parties to their status as

it existed immediately prior to the alleged wrongful conduct;

(4) that the activity it seeks to restrain is actionable, that its right to relief is clear,

and that the wrong is manifest;

(5) that the injunction it seeks is reasonably suited to abate the offending activity;

and,

(6) that a preliminary injunction will not adversely affect the public interest.

Warehime v. Warehime, 860 A.2d 41, 46-47 (Pa. 2004). “The burden is on the party

who requested preliminary injunctive relief…” Id. “For a preliminary injunction to

issue, every one of these prerequisites must be established; if the petitioner fails to

establish any one of them, there is no need to address the others.” Allegheny Cty. v.

Com., 544 A.2d 1305, 1307 (Pa. 1988). Instantly, the Petitioners cannot satisfy any

element required to obtain an injunction.

5

ARGUMENT

I. Petitioners Cannot Demonstrate a Clear Right to Relief on the

Merits.

A. The Governor is empowered by the Emergency Management

Services Code to close certain businesses during a disaster.

Extraordinary times requires extraordinary measures to save lives.

Recognizing this, the General Assembly enacted the Emergency Management

Services Code, 35 Pa. C.S. § 7101 et seq. empowering the Governor to “meet[ ] the

dangers to this Commonwealth and people presented by disasters.” 35 Pa.C.S. §

7301(a). The stated purpose of that statute is to, inter alia, “reduce vulnerability of

people and communities of this Commonwealth to damage, injury and loss of life

and property resulting from disasters”; “care and treat[ ] persons victimized or

threatened by disasters”; and “strengthen the roles of the Governor . . . in prevention

of, preparation for, response to and recovery from disasters.” 35 Pa.C.S. § 7103. The

Governor’s powers during a disaster are broad, and include, inter alia, controlling

the “ingress and egress to and from a disaster area, the movement of person within

the area and the occupancy of premises therein” and the power to “suspend or limit

the sale” of firearms. 35 Pa.C.S. § 7301(f)(7),(8).

This statute defines “disaster” as a “man-made disaster, natural disaster or

war-caused disaster.” 35 Pa.C.S. § 7102. A “Natural disaster” is “[a]ny hurricane,

tornado, storm, flood, high water, wind-driven water, tidal wave, earthquake,

6

landslide, mudslide, snowstorm, drought, fire, explosion or other catastrophe

which results in substantial damage to property, hardship, suffering or possible

loss of life.” Id. (emphasis added). A “Man-made disaster” is “[a]ny industrial,

nuclear or transportation accident, explosion, conflagration, power failure, natural

resource shortage or other condition, except enemy action, resulting from man-

made causes . . . which threatens or causes substantial damage to property,

human suffering, hardship or loss of life.” Id. (emphasis added).

The global COVID-19 pandemic is both a natural and man-made disaster, as

it is a natural catastrophe driven by person-to-person contact. That contact has

resulted in substantial human suffering and more than 11,000 deaths worldwide so

far. Petitioners’ argument that the global COVID-19 pandemic is somehow not a

disaster demonstrates a dangerous level of myopathy about the effect this pandemic

could have on the citizens of the Commonwealth and our health care system if the

spread of this disease is not arrested.

Petitioners rely on the legal maxim of ejusden generis to support their

position. Their position should be rejected. Under the ordinary meaning of

“catastrophe,” COVID-19 is perhaps the biggest catastrophe of our lifetimes.

Petitioners pervert the plain meaning of the word and subvert the General

Assembly’s purpose of protecting the citizens of Pennsylvania in an emergency

situation.

7

Petitioners maintain that a pandemic cannot be an “other catastrophe” because

the specific items listed are weather related events, except—they admit—for

“explosions.” It is further debatable whether “fire” and “mudslide” are necessarily

weather related. Regardless, the term “other catastrophe” is expansive and is not

limited by the specific enumerated terms. This Court has previously recognized that

such language is to be broadly construed; here to include pandemics and other types

of catastrophes not specifically listed. See Danganan v. Guardian Protective

Services, 179 A.3d 9 (Pa. 2018) (Consumer Protection Law which has “and

includes” in definitional section interpreted broadly despite doctrine of ejusden

generis).

However, in the present situation, with the safety of the public in the balance,

the Court should give extreme deference to the Governor. As this Court said in

Lancaster County v. PLRB, 94 A.3d 979, 986 (Pa. 2014):

[A]n administrative agency’s interpretation [of a statute]

is be to given ‘controlling weight unless clearly

erroneous.’ However, when an administrative agency's

interpretation is inconsistent with the statute itself, or

when the statute is unambiguous, such administrative

interpretation carries little weight. Appreciating the

competence and knowledge an agency possess in its

relevant field, our Court [has] opined that an appellate

court ‘will not lightly substitute its judgment for that of a

body selected for its expertise whose experience and

expertise make it better qualified than a court of law to

weigh facts within its field.’

8

Id. As the Governor’s interpretation of the statute is certainly not clearly erroneous,

the Petition should be denied.

Further, the Emergency Management Services Code is part of a

comprehensive regulatory framework. The specific powers granted to the Governor

under 35 Pa.C.S. § 7301(f)(7) and (f)(8) must be considered in the broader context

of the powers granted to him to proclaim and respond to a disaster emergency. See

35 Pa.C.S. § 7103 (outlining the purposes of the Emergency Services Management

Code as “reduc[ing] the vulnerability and people and communities of this

Commonwealth to damage, injury and loss of life and property resulting from

disasters.”); see generally Peco Energy Co. v. Pa. Pub. Utility Comm’n, 791 A.2d

1155, 1160 (Pa. 2002); Casey v. Pa. State Univ., 345 A.2d 695, 700 (Pa. 1975).

Petitioners argue that if Section 7301(f)(7) grants the Governor the authority

to regulate and forcibly close non-life sustaining businesses, then Section 7301(f)(8),

prohibiting the sale, dispensing and transportation of alcoholic beverages, firearms,

explosives, and combustibles in commerce, is rendered mere surplusage. But this is

a false dichotomy. Section 7301(f)(7) and (f)(8), read together, give the Governor

the authority to tailor his response to the emergency. The Governor’s response is

largely directed, not at the sale of certain goods, but toward the congregating of

people who, together, can widely transmit COVID-19 to one another.

9

There is another reason for the Judiciary to defer to the Executive in these

circumstances. Baker v. Carr, 369 U.S. 186, 210 (1962), outlines the boundaries of

when an issue falls within the political question doctrine. Pursuant to that doctrine,

it is appropriate under the separation of powers to attribute finality to the actions of

the political branches when there is a lack of satisfactory criteria for a judicial

determination. One broad area the U.S. Supreme Court outlined, of particular

relevance to natural disasters, concerned the dates and duration of hostilities. There,

the U.S Supreme Court recognized “[d]ominant is the need for finality in the political

determination, for emergency natures demand a prompt and unhesitating

obedience.” Baker, 369 U.S. at 213-214. That is the circumstance presented here.

B. The Governor’s Order does not violate Article 1, Section 1 of the

Pennsylvania Constitution or the Fifth and Fourteenth

Amendments to the U.S. Constitution.

The Firearm Petitioners argue that Due Process is violated because the

Governor’s Order is vague. This is untrue. The Order references a list of business

separated by industry as commonly used by the U.S. Bureau of Labor Statistics. See

Industries by Supersector and North American Industry Classification System

(NAICS) Main (NAICS) Code, U.S. Bureau of Labor Statistics

https://www.bls.gov/iag/tgs/iag_index_naics.htm (last visited 3/20/2020). Any

business would already know which sector it occupies and its corresponding NAICS

code. Additionally, the Pennsylvania Department of Community and Economic

10

Development provides resources to assist businesses. COVID-19 Business

Resources, https://dced.pa.gov/resources/ (last visited 3/20/2020).

The Governor’s Order is not vague, arbitrary, or discriminatory. Rather, it is

a tailored response to an ever-evolving emergency.

C. The Governor’s Order does not abridge the right to bear arms.

Petitioner’s argument that the Governor’s Order somehow impinges upon the

right to bear arms is without merit. “Like most rights, the right secured by the Second

Amendment is not unlimited.” District of Columbia v. Heller, 554 U.S. 570, 626

(2008). As the U.S. Supreme Court explained in Heller, “nothing in our opinion

should be taken to cast doubt on . . . laws imposing conditions and qualifications on

the commercial sale of arms.” Heller, 554 U.S. at 626.

This Order does not prohibit individuals from possessing firearms, it merely

suspends—temporarily—a variety of stores from acting as centers of contagion. It

does not single out firearm sales in its application. But even if it did, the Emergency

Management Services Code specifically empowers the Governor to suspend the sale

of firearms during times of disaster. 35 Pa.C.S. § 7301(f)(8).

D. The Governor’s Order does not regulate the practice of law.

Petitioner’s argument that the Governor’s Order regulates the practice of law

ignores the language of the Order and the reality of the modern practice of law.

11

First, the Governor’s Office has been in regular contact with the

Administrative Office of Pennsylvania Courts (AOPC) for “for guidance on

measures to continue protecting the health and safety of court users and court

employees.” UJS Coronavirus Information, http://www.pacourts.us/ujs-

coronavirus-information (last visited 3/20/2020). H. Geoffrey Moulton Jr., court

administrator of AOPC, recently issued the following statement on this precise issue:

In the view of AOPC, restricted access to law offices and

facilities by legal professionals, staff, and clients is

permitted to the degree necessary to allow attorneys to

participate in court functions deemed essential by a

President Judge per the Supreme Court’s order of March

18, 2020, so long as social distancing and other mitigation

measures are employed for the protection of lawyers, staff,

and clients. Pursuant to the Governor’s order, all other

business must be conducted remotely; necessary retrieval

of files or other materials should be accomplished

expeditiously.

Max Mitchel, “Pa. Office of Counsel OK's AOPC Guidance Saying Law Offices

May Stay Open on Restricted Basis,” The Legal Intelligencer,

https://www.law.com/thelegalintelligencer/2020/03/20/pa-office-of-counsel-says-

law-offices-may-stay-open-on-restricted-basis (last visited 3/20/2020).

Restricted access to law offices and facilities by legal professionals, staff, and

clients is permitted to the degree necessary to allow attorneys to participate in court

functions deemed essential by the courts. Attorneys, therefore, are not prohibited

from practicing law during the pandemic.

12

Second, as the Firearm Petitioners recognize, the Governor’s Order explicitly

exempts “virtual or telework operations (e.g. work from home).” Firearm Petition at

7. Long gone are the need for attorneys to maintain large physical law libraries,

conduct in-person meetings, or file physical documents with the Prothonotary.

Electronic filing through PACFile is at least a decade old and client meetings and

court hearings can, and are, being performed via video conference or telephone.

As this Court is well aware, attorneys across the Commonwealth continue to

litigate, and the Court continue to operate, from home offices while we attempt to

“flatten the curve” of this pandemic. In fact, a team of attorneys prepared this filing

entirely electronically, as all physical offices of the Attorney General have been

closed.

Under Petitioners’ theory, only this Court could condemn an unsafe structure

if that structure contains a law office. This is, of course, nonsense. And none of the

cases cited by petitioners remotely suggest otherwise. See Loyd v. Fishinger, 605

A.2d 1193 (Pa 1992) (concerning rules of ethics applied to attorney’s practice); Com.

v. Stern, 701 A.2d 568 (Pa. 1997) (criminal statute prohibiting payment for

referrals); Shaulis v. Pennsylvania State Ethics Comm'n, 833 A.2d 123 (Pa. 2003),

abrogated by Yocum v. Commonwealth Pennsylvania Gaming Control Bd., 161 A.3d

228 (Pa. 2017) (Public Official and Employee Ethics Act imposing restrictions upon

former government employees who are also attorneys); Wajert v. State Ethics

13

Comm'n, 420 A.2d 439 (Pa. 1980) (Law prohibited judges from representing parties

before court where they once sat). Petitioner Costopoulos cites no cases or authority

in support of his petition, beyond the standard to seek a stay in Pennsylvania Pub.

Util. Comm’n v. Process Gas Consumers Grp., 467 A.2d 805 (Pa. 1983).

Petitioners ignore the national emergency besetting all occupations, not

merely attorneys, to attempt to cabin the Governor’s authority to address that very

emergency. However, this Court “DECLARE[D] that a judicial emergency exists in

all judicial districts, effective at close of business on March 19, 2020 . . .” and

suspended all time calculations and deadlines through April 3, 2020. In re: General

Statewide Judicial Emergency, Admin. Dkts. 531 & 532 (Pa). A judicial emergency

necessitates that lawyers practice law differently than their preference.

II. An Injunction is Against the Public Interest and Greater Harm will

Result if an Injunction is Issued.

The party seeking an injunction “must show that a preliminary injunction will

not adversely affect the public interest.” Summit Towne Ctr., Inc. v. Shoe Show of

Rocky Mount, Inc., 828 A.2d 995, 1001 (Pa. 2003). Further, “[w]hen the issuance of

an injunction will cause serious public inconvenience or loss without a

corresponding great advantage to the complainant, no injunction will be granted

even though the complainant would otherwise be entitled to its issuance.” Searfoss

v. Sch. Dist. of Borough of White Haven, 156 A.2d 841, 845 (Pa. 1959).

14

The Governor’s Order was enacted for the sole purpose of protecting the

citizens of the Commonwealth and was issued only after less-restrictive measures

proved ineffective at preventing the spread of COVID-19. Initially, the Governor

ordered a two-week closure of all K-12 schools throughout the Commonwealth and

announced mitigation measures in Montgomery and Delaware counties.8 The

mitigation efforts were then expanded to include Bucks and Chester counties.9

Effective March 16, Governor Wolf ordered restaurants in Allegheny, Bucks,

Chester, Delaware, Montgomery counties to cease dine-in services.10 Similar

closures took effect state-wide on March 17 and non-essential businesses were urged

8 Gov. Wolf, Sec. of Health, PA Chamber Outline COVID-19 Mitigation

Guidance for Pennsylvania Schools, Businesses, and Additional Closures in

Delaware County, https://www.governor.pa.gov/newsroom/gov-wolf-sec-of-health-

pa-chamber-outline-covid-19-mitigation-guidance-for-pennsylvania-schools-

businesses-and-additional-closures-in-delaware-county/ (3/13/20).

9 Gov. Wolf, Congresswoman Houlahan, Sec. of Health, Sec. of Education

Outline COVID-19 Mitigation Guidance for Pennsylvania Schools and Additional

Closures in Bucks and Chester Counties,

https://www.governor.pa.gov/newsroom/gov-wolf-congresswoman-houlahan-sec-

of-health-sec-of-education-outline-covid-19-mitigation-guidance-for-

pennsylvania-schools-and-additional-closures-in-bucks-and-chester-counties/

(3/14/20).

10 Wolf Administration Orders Restaurants and Bars to Close Dine-In Service in

Mitigation Counties Including Allegheny To Stop Spread of COVID-19,

https://www.governor.pa.gov/newsroom/wolf-administration-orders-restaurants-

and-bars-to-close-dine-in-service-in-mitigation-counties-to-stop-spread-of-covid-

19/ (3/15/20).

15

to close for 14-days.11 Throughout this time, the Governor and Secretary of Health

repeatedly requested that all Pennsylvanians engage in social distancing and engage

in safe practices such as covering coughs and sneezes with your elbow, washing

hands frequently with soap and water for at least 20 seconds and using alcohol-based

hand sanitizer when soap and water are not available, frequent cleaning of surfaces,

and to stay home if not feeling well. The Governor asked individuals and businesses

to voluntarily employ processes to allow individuals stay home, minimize contact –

specifically calling for the voluntary closing of non-essential businesses, such as

gyms, movie theaters and shopping malls; and the limitation of operations of bars

and restaurants.12

But none of these measures proved effective at stopping the rapid spread of

COVID-19. Indeed, last Friday, there were only 41 cases confirmed in Pennsylvania.

11 Wolf Administration Updates Businesses on Guidance for COVID-19

Mitigation Efforts, https://www.governor.pa.gov/newsroom/wolf-administration-

updates-businesses-on-guidance-for-covid-19-mitigation-efforts/ (3/16/20).

12 Gov. Wolf, Congresswoman Houlahan, Sec. of Health, Sec. of Education

Outline COVID-19 Mitigation Guidance for Pennsylvania Schools and Additional

Closures in Bucks and Chester Counties,

https://www.governor.pa.gov/newsroom/gov-wolf-congresswoman-houlahan-sec-

of-health-sec-of-education-outline-covid-19-mitigation-guidance-for-

pennsylvania-schools-and-additional-closures-in-bucks-and-chester-counties/

(3/14/20).

16

Today, there are 268 with 52 new cases confirmed since yesterday.13

Pennsylvanians refused to voluntarily engage in “social distancing” to prevent the

spread of COVID-19 leaving Governor Wolf with no option other than to close non-

essential businesses to “lessen the curve” of the disease. This step was necessary to

protect and preserve human life in Pennsylvania. The issuance of an injunction will

not merely harm the public, it will actively contribute to the spread of COVID-19

resulting in the infection of countless Pennsylvanians and additional loss of life.

III. Petitioners Cannot Demonstrate that an Injunction will Prevent

Irreparable Harm.

A party “seeking a preliminary injunction must show that an injunction is

necessary to prevent immediate and irreparable harm that cannot be compensated

adequately by money damages.” Greenmoor, Inc. v. Burchick Const. Co., 908 A.2d

310, 314 (Pa. Super. 2006). In order to meet this burden, there must be “concrete

evidence” demonstrating “actual proof of irreparable harm.” Id. The claimed

“irreparable harm” cannot be based solely on speculation and hypothesis. Id.; see

also ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987) (“Establishing a

risk of irreparable harm is not enough. A plaintiff has the burden of proving a ‘clear

showing of immediate irreparable injury.’”).

13 “Pa. reports 83 new coronavirus cases as state total rises to 268,” PennLive,

https://www.pennlive.com/news/2020/03/pa-reports-83-new-coronavirus-cases-

state-total-rises-to-268.html (last visited 3/20/20).

17

Instantly, the Petitioners have not made a showing of irreparable harm based

upon a disruption in their business operations and loss of money. Petitioners are

suffering the same disruption faced by all other non-essential businesses in the

Commonwealth. This disruption is not actionable. Indeed, there is no precedent

indicating that economic harm can constitute irreparable harm in the face of a

Declaration of Disaster. Moreover, economic harm is generally insufficient in

constituting irreparable harm for purposes of a preliminary injunction, particularly

where that economic harm is speculative. Here, Petitioners have presented no data,

studies, testimony or other evidence showing what their economic harm will be

during these unprecedented times.

This Court, in Summit Towne Ctr., Inc. v. Shoe Show of Rocky Mount, Inc.,

649, 828 A.2d 995, 1002–03 (Pa. 2003), rejected speculative financial harm as

irreparable harm. In Summit Towne Center, a store lessor, who was seeking an

injunction against a lessee, testified in terms of “domino effects” and hypotheticals

in attempting to establish irreparable harm. The Supreme Court ruled that because

the petitioner’s “testimony rested almost entirely on speculation and hypothesis, as

he provided no concrete evidence of harm such as data relating to other stores’ lost

sales, decreased retention rates, or increased vacancy rates,” that there was no

evidence of immediate and irreparable harm. Id. at 1002-03.

18

So too here. Speculative testimony about potential customers is insufficient

to obtain an injunction. See Novak v. Commonwealth, 523 A.2d 318, 320 (Pa. 1987)

(rejecting speculative considerations as legally sufficient to support preliminary

injunction); New Castle Orthopedic Assocs. v. Burns, 392 A.2d 1383, 1387 (Pa.

1978) (plurality) (stating that “actual proof of irreparable harm” required for

preliminary injunction, and concluding that injunction granted in that case was

improper because record failed to indicate irreparable harm); Credit Alliance Corp.

v. Phila. Minit–Man Car Wash Corp., 301 A.2d 816, 818 (Pa. 1973) (trial court

properly denied preliminary injunction where no showing made of necessity to avoid

immediate and irreparable harm); Sameric Corp. of Mkt. St. v. Goss, 295 A.2d 277,

279 (Pa. 1972) (rejecting speculative considerations offered in support of

preliminary injunction).

Moreover, because Petitioners have no clear right to relief on the merits, there

is no per se irreparable harm. Petitioners attempt to circumvent their obligation to

adduce concrete evidence of irreparable harm by falling back on their arguments on

the merits. The Firearms Petitioners proffer one paragraph as to harm—relying

solely on per se harm as their basis for relief. Firearms Petition at 26-27. Petitioners’

arguments fail as a matter of law, however. Therefore, their lack of actual harm is

not remedied by this theoretical concept.

19

In sum, Petitioners have not demonstrated any actual harm that surpasses the

importance of the Declaration of Disaster, warranting continuing operation of in-

person transactions at their businesses.

IV. Entry of a Preliminary Injunction will Disrupt the Status Quo and Will

Not Abate Offensive Conduct.

“A preliminary injunction is designed to preserve the subject of the

controversy in the condition in which it is when the order is made, it is not to subvert,

but to maintain the existing status quo until the legality of the challenged conduct

can be determined on the merits.” Sheridan Broad. Networks, Inc. v. NBN Broad.,

Inc., 693 A.2d 989, 994 (Pa. Super. Ct. 1997) (quoting In re Appeal of Little Britain,

651 A.2d 606, 611 (Pa. Cmwlth. 1994)).

On March 6, 2020, the Governor declared a disaster emergency. Just prior to

the Governor’s Order on March 19, 2020, there were 185 confirmed cases of

COVID-19. This was not a “peaceable status” as implied by Petitioners. The

Commonwealth was facing “an invisible danger” that needed to be contained as

quickly as possible. By the next day, the confirmed virus count was 268. An

injunction will not restore the status quo, because there is no status quo when dealing

with a pandemic. The situation is changing by the minute and immediate action must

to be taken to prevent additional loss of life. The Governor’s Order is this action.

While an injunction would serve to reopen Petitioners’ business, it would not

abate the offending activity. Here, the real offending activity of which Petitioners

20

complain is Governor Wolf’s attempt to protect Pennsylvanians from the COVID-

19 pandemic. Extraordinary times requires extraordinary measures to save lives and

the Governor alone is charged with the responsibility to address dangers facing the

Commonwealth of Pennsylvania that result from disasters.

21

CONCLUSION

For these reasons, the Court should deny the applications for extraordinary

relief.

Respectfully submitted,

JOSH SHAPIRO

Attorney General

KELI NEARY

Executive Deputy Attorney General

Civil Law Division

By: /s/ J. Bart DeLone

J. BART DeLONE

Chief Deputy Attorney General

Chief, Appellate Litigation Section

Pa. Bar # 42540

Office of Attorney General

15th Floor, Strawberry Square

Harrisburg, PA 17120

Phone: (717) 712-3818

FAX: (717) 772-4526

DATE: March 20, 2020

22

CERTIFICATE OF COUNSEL

I hereby certify that this brief contains 4,260 words within the meaning of Pa.

R. App. Proc. 2135. In making this certificate, I have relied on the word count of the

word-processing system used to prepare the brief.

I further certify that this filing complies with the provisions of the Public

Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the

Appellate and Trial Courts that require filing confidential information and

documents differently than non-confidential information and documents.

/s/ J. Bart DeLone

J. BART DeLONE

Chief Deputy Attorney General

Chief, Appellate Litigation Section

23

CERTIFICATE OF SERVICE

I, J. Bart DeLone, Chief Deputy Attorney General, do hereby certify that I

have this day served the foregoing answer, via electronic service, on the following:

Joshua Prince, Esq.

CIVIL RIGHTS DEFENSE FIRM

Adam Kraut, Esq.

FIREARMS POLICY COALITION

William C. Costopoulos, Esq.

COSTOPOULOS, FOSTER, & FIELDS

/s/ J. Bart DeLone

J. BART DeLONE

Chief Deputy Attorney General

DATE: March 20, 2020